Obama appointing a new justice could work, but probably won’t

Bob Packwood, who voted on 16 Supreme Court nominations during his time representing Oregon in the U.S. Senate, thinks there is a way of preventing Antonin Scalia’s death from leaving an empty Supreme Court parking space for at least a year.

It involves President Obama negotiating the nomination he says he’s determined to make with the Republicans who control the Senate, the ones who’ve said they won’t consider anyone sent over by a Democratic president with a year left in his term.

“I find it hard to believe that in the entire United States,” says Packwood, “you can’t find a judge acceptable to a majority of both Republicans and Democrats.”

That would mean Obama dropping hopes of naming the kind of justice he would ideally want, and Republican senators dropping the dream of keeping the vacant seat to be filled by President Trump, presumably in line with the choices he’s made on “Celebrity Apprentice.”

We’re in an unclear situation. The last Democratic president to send a Supreme Court nomination to a Republican-controlled Senate was Grover Cleveland, back when Republicans didn’t have to worry about being denounced on Fox News.

One hour after the announcement of Scalia’s death, Senate Majority Leader Mitch McConnell – the one who declared that his main objective in the Senate was to keep Obama from a second term – made an attempt to cut that term short, invoking a previously unknown tradition that of course a president can’t nominate a justice during his last year. Most Republican senators quickly agreed.

The leading GOP presidential candidates took a break from calling each other liars, threatening to sue each other and discussing Jeb Bush’s mother to demand that the Senate stonewall any Obama choice, although the argument is as close as most of them will ever get to a Supreme Court nomination.

Obama, meanwhile, announced that of course he would make a nomination. Sen. Ron Wyden called on the president and Senate to act with “urgency,” and Sen. Jeff Merkley urged everyone to act “quickly and thoughtfully.”
We’ve seen this kind of confrontation happen before. And as a result, we’ve seen nothing actually happen.

It’s now a complicated calculation for all the players. An appealing nomination ignored by the Republican Senate could make the Supreme Court and Republican obstruction an issue throughout this election year, which would not necessarily be to Republican advantage. Demonstrating the feelings involved, a black former state legislator in South Carolina suggested to The New York Times that Republicans were trying to limit Obama to three-fifths of a presidential term.

Besides, points out Packwood, “If Hillary wins the election, and the Democrats take the Senate, Republicans will be in worse shape than they are now.”

This may be why several Republican senators, including Judiciary Committee chairman Charles Grassley of Iowa, have suggested that maybe it wouldn’t hurt to hold some hearings if Obama makes an appointment they consider plausible – although on Thursday, Grassley seemed to back away from the idea.

On the other hand, you might wonder whether a high-level prospect for the Supreme Court, especially one who might appeal to a wide constituency, would want to sign up for a nomination process that these days resembles a months-long full-body colonoscopy – Sonia Sotomayor’s response just to the Judiciary Committee questionnaire was 5,000 pages long – with relatively little chance of confirmation at the end of it.

(Packwood’s not worried about that: “I’m sure he could find someone to do it, because just to say ‘I was nominated to the Supreme Court’ is an honor.”)

Prospects for an Obama-nominated judge at any level – let alone a nominee for the highest court – making it through the Republican Senate these days are not promising. As Catherine Rampell recently reported in The Washington Post, since the Republicans took over the Senate in January 2015, the Senate has confirmed only 11 judges, the fewest in that time period since 1960. It has confirmed just one appeals court judge, the fewest since 1953. During that time, the number of districts qualifying as “judicial emergencies,” meaning there weren’t enough sitting judges to handle the case load, rose from 12 to 31.

This may be a different time than Bob Packwood’s, not to say Grover Cleveland’s.

Moreover, the average time for a judge between nomination and conformation has been 283 days. So if Obama nominated someone this week, the best case for confirmation would be around Thanksgiving, when there would actually be a newly elected next president.